No Right Answer PDF

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Ronald Dworkin, No Right Answer, 53 N.Y.U. L. Rev. 1

(1978)
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NEW YORK UNIVERSITY
LAW REVIEW
VOLUME 53 APRIL 1978 NUMBER 1
NO RIGHT ANSWER?*
RONALD DWORKIN**
Responding to his earlier essays, where it was argued that hard cases hare right
answers, ProfessorDworkin's critics have maintainedthat .ases often arise in which
there is no right answer, and thatjudges as a consequence exercise discretion. Pro-
fessor Dworkin now details a refutation of two versions of the claim that there is no
right answer in a case at law. He first argues that an understandingof dispositirce
legal concepts, which link individual rights with official duty, defeats the claim that
there is a logical space between affirnatice and negative judicial results such that
neither may be right. He then assembles and dismantles argurwntsfrom vagueness.
positivism, and controversy, each of which purports to show that there is sufficient
indeterminacy in judicial decisions to prcclude demonstrable rightness of result. Fi-
nally, a rarity thesis is sketched to show that ecen if there are some cases in which
there is no right answer, they are sufficiently rare in a mature legal system as to be
exotic.
WHAT IS THE QUESTION?
When is there no right answer to a question of law? Suppose the

legislature has passed a statute stipulating that "sacrilegious contracts
shall henceforth be invalid." The community is divided as to whether
a contract signed on Sunday is, for that reason alone, sacrilegious. It
is known that very few of the legislators had that question in mind
when they voted, and that they are now equally divided on the ques-
tion of whether it should be so interpreted. Tom and Tim have
signed a contract on Sunday, and Tom now sues Tim to enforce the
* ©Ronald Dworkin. From LAw, MORALITY, AND SOCIErT: ESSAYS IN iONOUR OF

H.L.A. HART 58 (P.M.S. Hacker & J. Raz eds., Oxford University Press 1977). Reprinted, in a
revised and expanded form, by permission of the author and the publisher.
** Professor of Jurisprudence and Fellow of University College. Oxford; Professor of Law.
New York University School of Law. I wish to thank Careth Evans. and also members of the
seminar he and I jointly offered at Oxford in 1975.
Imaged with the Permission of N.Y.U. Law Review

NEW YORK UNIVERSITY LAW REVIEW [Vol. 53:1
terms of the contract, whose validity Tim contests. Shall we say that
the judge must look for the right answer to the question of whether
Tom's contract is valid, even though the community is deeply divided
about what the right answer is? Or is it more realistic to say that
there simply is no right answer to the question?
That issue is central to a large number of controversies about
what law is. It has been debated under many titles, including the
question of whether judges always have discretion in hard cases, and
whether there are what some legal philosophers call "gaps" in the
law. I now wish to defend the unpopular view, that in the cir-
cumstances just described the question of Tom's contract may well
have a right answer, against certain arguments on which its oppo-
nents knowingly or unknowingly rely. I shall also try to show what
sense there is in the no-right-answer thesis, and- why the occasions
when a legal question has no right answer in our own legal system
may be much rarer than is generally supposed. I shall begin, how-
ever, by insisting upon a clarification of the issue that removes a
troublesome ambiguity.
Certain legal concepts, like the concept of a valid contract, of
civil liability, and of a crime, have the following characteristic: If the
concept holds in a particular situation, then judges have a duty, at
least prima facie, to decide some legal claim one way; but if the con-
cept does not hold, then judges have a duty, at least prima facie, to
decide the same claim in the opposite way. I shall call such concepts
"dispositive" concepts. Lawyers seem to assume, in the way they talk
and argue, what we might call the "bivalence thesis" about dispositive
concepts: that is, that in every case either the positive claim, that the
case falls under a dispositive concept, or the opposite claim, that it
does not, must be true even when it is controversial which is true.
Lawyers seem to assume, for example, that an exchange of promises
either does or does not constitute a valid contract. If it does, then
judges have at least a prima facie duty to enforce these promises if so
requested within their jurisdiction; but if it does not, then they have
at least a prima facie duty not to do so on contractual grounds.
Lawyers seem to assume that a particular person is either liable in
law for the damage his act has caused or he is not; if he is, then
judges have a duty to hold him in damages, but if he is not, then
they have a duty not to. They seem to assume that a particular piece
of conduct, taking into account intention and circumstances, either
constitutes a crime or it does not; if it does, and the actor has no
other defense, then the judge (or jury) has a duty to hold him guilty;
but if it does not, then the judge (or jury) has a duty to find him
innocent.

April 19781 NO RIGHT ANSWER?
If it is true that an exchange of promises either does or does not

constitute a valid contract, and that someone sued in tort either is or
is not liable in damages, and that someone accused of a crime either
is or is not guilty, then at least every case in which these issues are
dispositive has a right answer. It may be uncertain and controversial
what that right answer is, of course, just as it is uncertain and con-
troversial whether Richard m murdered the princes. It would not
follow from that uncertainty that there is no right answer to the legal
question, any more than it seems to follow from the uncertainty about
Richard that there is no right answer to the question whether he
murdered the princes. But is it true that an exchange of promises
always either does or does not constitute a valid contract, or that
someone always is either liable or not liable in tort, or guilty or not
guilty of a crime?
I can now state the ambiguity latent in the thesis that in some
cases a question of law has no right answer. We may distinguish two
versions of that thesis. Both versions deny that the bivalence thesis
holds for important dispositive concepts. They deny that an exchange
of promises always either does or does not constitute a valid contract
(and that a defendant always either is or is not liable in tort, and so
forth). But they differ in the character of argument each makes. The
first version argues that the surface linguistic behavior of lawyers just
described is misleading because it suggests that there is no logical
space between the proposition that a contract is valid and the prop-
osition that it is not valid; that is, because it does not contemplate
that both propositions may be false. In fact, however, if we look more
deeply into the matter, we find that it might be false both that a
contract is valid and that it is not valid, false both that a person is
liable and that he is not liable for some act, and false both that a
particular act constitutes a crime and that it does not. In each case
both propositions may be false because in each case the), do not
exhaust the logical space they occupy; in each case there is a third
independent possibility that occupies the space between the other
two. On this first version of the thesis, the question "Is Tom's con-
tract valid or invalid?" makes a mistake like the one that the question
"Is Tom a young man or an old man?" makes. The latter question
may have no right answer because it ignores a third possibility, which
is that Tom is a middle-aged man. According to the first version, the
legal question also ignores a third possibility, which is that an ex-
change of promises may constitute neither a valid contract, such that
judges have a duty to enforce the exchange, nor a contract that is not valid,
with the consequence that judges have a duty not to enforce it, but
something else that might be called, for example, an "inchoate" contract.

The second version of the no-right-answer thesis, on the other

hand, does not suppose that there is any logical space, in that sense,
between the propositions that a contract is valid and that it is not
valid, or that a person is liable or that he is not, or that an act is a
crime or that it is not. It does not suppose that there is any third
possibility, and yet it denies that one of the two available possibilities
always holds, because it may not be true that either does. On this
second version of the thesis, the question "Is Tom's contract valid or
not valid?" is like the question "Is Tom middle-aged or not?" There
may be no right answer to the latter question if Tom is of an age that
lies on the border between youth and middle age, not because we
recognize categories of age distinct from both middle age and non-
middle age, but because, at the border, it is a mistake to say of
someone either that he is or that he is not middle-aged.
I do not mean to suggest, by offering this comparison, that the
second version of the thesis must suppose that the concepts of a valid
contract, of legal liability, and of crime are vague like the concept of
middle age. Though, as we shall see, some arguments for the second
version are based on claims about vagueness, others are of the differ-
ent character suggested by the following comparison. Some
philosophers believe that there is no right answer to the question of
whether Charles was brave if Charles is dead and never faced any
occasion of danger during his lifetime, not because "brave" is vague
but because it is wrong to say that a man was either brave or not
brave if we could have no evidence bearing on the question of which
he was.' The second version of the thesis may be defended, as we
shall also see, in a manner that seems closer to this argument than to
the argument from vagueness.
We may state the difference between the first and second ver-
sion of the no-right-answer thesis more formally. Let (-p) be defined
as the logical negation of (p), so that if (p) is false (-p) is true, and if
(-p) is false (p) is true. Let the proposition that Tom's contract is
valid be represented by "p" and the proposition that his contract is
not valid as "non-p." The bivalence thesis supposes that the question
about Tom's contract must have a right answer, even if we are not
sure what it is, because (non-p) is identical with (-p) and either (p) is
true or (--p) is true because ((p) or (-p)) is necessarily true. Both
versions of the no-right-answer thesis agree that this is a mistake, but
they disagree about what kind of mistake it is. The first version ar-
I See Dummett, Truth, in PHILOSOPHICAL LOGIC 64-66 (P. Strawson ed. 1967).

April 19781 NO RIGHT AN.VSWER?
gues that (non-p) is not identical to (-p); (non-p) should be rep-

resented as a proposition (r) that is not the logical negation of (p). (I
do not mean, by the choice of "r" in that representation, to suggest
that the first version must hold that (non-p) is unstructured, but only
that it is not the negation of (p).) Plainly, ((p) or (r)) is not necessarily
true; it does not allow for the possibility of (q) which is neither (p)
nor (r) but something in between. The second version, on the other
hand, does not deny that (non-p) is identical to (-p); instead it holds
that in some cases neither (p) nor (-p) is true, that is, that in some
cases bivalence does not hold.
If either version of the thesis is right, then there may be many
lawsuits in which it would be wrong to say that either party is enti-
tled to a decision, and right to concede that the judge has a discretion
to decide either way. But there is this important difference. If the
first version holds, then this discretion is affirmatively provided by
law, because the law distinguishes circumstances in which exchanges
of promises, for example, fall into.a distinct category which has dis-
cretion as a consequence. If the second version holds, on the other
hand, discretion follows, not by affirmative provision, but by default:
since the law stipulates nothing, even discretion, the judge must do
what he can on his own.
II
THE FIRST VERSION
We can easily imagine a legal system such that if anyone claimed
that there is always a right answer to the question of whether judges
have a duty to enforce an exchange of promises, or to refuse to en-
force the exchange, he would be making a mistake of the sort the first
version supposes. Even under our own law, after all, there are many
decisions that a judge has no duty to make either way. That is so, for
example, when the plaintiff requests an early adjournment on some
particular day and the defendant asks that the request be denied. It is
also so when the defendant has been convicted of a crime for which
the statute provides a sentence of from three to five years, and the
prosecution asks for the maximum, while the defense asks for the
minimum, sentence. The concept of duty provides a space between
the proposition that the judge has a duty to decide one way and the
proposition that he has a duty to decide another way; this space is
occupied by the proposition that he has no duty to decide one way or
the other, but rather a permission or, as lawyers say, a "discretion,"
to decide either way.

That space might easily be exploited to introduce a form of con-

tract that is neither valid nor invalid, as we now use those terms, but
inchoate. The law might provide, for example, that if a contract
otherwise unobjectionable is entered into by two people each over
twenty-one years of age the contract is "valid," and judges have a
duty to enforce it; if either party is less than sixteen years of age, the
contract is "invalid," and judges have a duty not to enforce it; but if
the younger party is between sixteen and twenty years of age the
contract is "inchoate," and the judge has a discretion to enforce it or
not depending upon whether, all things considered, he thinks that
the right thing to do. The law might stipulate, in a similar way, cir-
cumstances in which someone who has caused damage is neither
liable nor not liable for that damage, but rather, as we might say,
"vulnerable to liability," or circumstances in which a particular act is
neither a crime nor not a crime but, perhaps, "criminous." In a legal
system like that it would, of course, be wrong to translate "Tom's
contract is valid" as "p" and "Tom's contract is not valid" as p
and therefore wrong to appeal to the bivalence thesis to argue that
one of these propositions must be true.
The first version of the no-right-answer thesis argues that, con-
trary to how lawyers seem to talk, our own legal system is really like
that; that is, that there is space between each dispositive concept and
its apparent negation that is occupied by a distinct concept, like the
concept of an inchoate contract, though, as it happens, we do not
have a separate name for that distinct concept. But what argument is
available to support that claim? It is a semantic claim, about the
meaning of legal concepts, and it would therefore be natural to sup-
port the claim by some appeal to a linguistic practice that is decisive.
But since lawyers do seem to treat "not valid" as the negation of
"valid," "not liable" as the negation of "liable," and "is not a crime"
as the negation of "is a crime," the argument cannot take that natural
course. It cannot be like the argument that "old man" is not the true
negation of "young man." That argument may proceed simply by
calling attention to a widespread linguistic practice, or, more likely,
simply by reminding the speaker who has made the mistake of how
he, as a speaker of the language, ordinarily speaks. Since the legal
argument cannot proceed in that direct way, it is unclear how it can
proceed at all.
It would plainly be fallacious, for example, to argue for the first
version in the following way: "There is logical space between the
proposition that a judge has a duty to enforce the contract and the
proposition that he has a duty not to. That space is occupied by the
proposition that he has discretion to enforce it or not. Since it is a

April 1978] NO RIGHT ANSWER?
consequence of the proposition that the contract is valid that a judge

has a duty to enforce it, and a consequence of the proposition that
the contract is not valid that he has a duty not to enforce it, there
must therefore be a parallel space between these two propositions
about the contract, which is left available for the proposition that the
contract is inchoate."
That would be a fallacious argument because it does not follow
from the fact that the concept of duty has, in this sense, three values,
that the concepts used to define occasions of duty must also have
three values. In tennis, for example, judges have a duty to call a fault
if a serve falls wholly outside the service court, and a dut " not to call
a fault if it does not. There is space between the propositions that a
judge has a duty to call a fault and that he has a duty not to, but it
does not follow that there is space between the propositions that the
serve fell wholly without the service court and that it did not. Dis-
positive concepts are used to describe the occasions of official duty.
but it does not follow that these concepts must themselves have the
same structure as the concept of dut,.
Someone %vhowishes to defend the first version of the thesis will
properly object, however, to that analog3,. He will rightly say that the
concept of a valid contract does not simply describe the fictua. cir-
cumstances under which, as it happens, judges have a certain duty.
We can easily imagine the rules of tennis being changed so that, for
example, the judge will have a duty to call a fault if the ball lands on
the service-court line. But we cannot imagine a change in the rules of
lav such that judges would no longer have even a prima facie duty to
enforce a valid contract; in any case, if such a change were made, we
should certainly say that the concept of contract had itself r-adically
changed. For we use that concept (and the concepts of tort liabilitV
and crime) not simply to report in a neutral way that certain events,
comparable to the ball landing in a certain area, have occurred, but
as an argument in itself that certain legal consequences, including
official duties, follow from these facts.
But though this is certainly right, it is unclear what useful con-
clusions a defender of the first version is able to draw. Suppose he
were to take the point further, and say, not simply that statements
about contracts always provide grounds for claims about official dut,
but that such statements are indistinguishable from statements about
duty. He might say, for example, that it means the same thing to say
that a contract is valid as to say that a judge has a duty to enforce the
promises that compose it, and the same thing to say that it is invalid
as to say that he has a duty not to enforce these promises. If these

NEW YORK UNIVERSITY LAW REVIEW [Vol. 5311
equivalences in meaning hold, then the first version of the thesis fol-
lows in a straightforward way. Since there is space between the two
propositions about judicial duty, and since the two propositions about
contracts mean the same thing as the propositions about judicial duty,
there must be space between the two latter propositions as well.
This argument would be impeccable if the semantic theory on
which it is based, that propositions of law are equivalent in meaning
to propositions about official duties, were sound. But that theory is
not sound. There must be some differences in meaning between the
proposition that a contract is valid and the proposition that judges
have a duty to enforce the promises that compose the contract, be-
cause the former statement is ordinarily taken as providing an argu-
ment for the latter, not simply as a question-begging restatement of
it. If there is a conceptual, and not simply a contingent, connection
between dispositive concepts and legal rights and duties, there is also
a conceptual, and not merely a contingent, connection between such
concepts and the types of events they report. If a lawyer says that his
client has a right to win a judgment because the contract on which he
sues is valid, or because the contract on which be is being sued is
invalid, he indicates his readiness to make certain sorts of arguments
rather than others, to point to facts having to do with offer, accep-
tance, capacity, illegality, or mistake rather than to other sorts of
facts, to support his client's claim. The semantic theory which simply
translates statements about contracts into statements about official
duties therefore obscures the interesting and distinctive role of dis-
positive concepts in legal argument. These concepts provide a special
kind of bridge between certain sorts of events and the conclusory
claims about rights and duties that hold if these events can be dem-
onstrated to have occurred. They both designate tests for conclusory
claims and insist that if the tests they designate are not met, then the
opposite conclusory claim, not simply the denial of the first, holds
instead. The need for concepts having that function in legal argument
arises because the concepts of right and duty in which conclusory
claims are framed are structured, that is, because there is space be-
tween the opposite conclusory claims. The function is the function of
denying that the space thus provided may be exploited by rejecting
both the opposing claims. Dispositive concepts are able to fill this
function just because the first version of the no-right-answer thesis is
false; if there were space between the propositions that a contract is
and is not valid, that concept could not close the space provided by
the concepts of right and duty.
The correct analogy, on this account of the matter, is not be-
tween dispositive legal concepts and factual events in a game, like a

ball landing within or without a physical area. The correct analog), is

between these concepts and dispositive concepts that fulfill the same
function within a game. The concept of a tennis serve being "in" or
"out" tout court, rather than within or without a physical area, is a
dispositive tennis concept. The events that make a serve "in"may
change, within limits, as when the rules change so that a serve on the
line is ..out," but the dispositive concept nevertheless has the func-
tion of connecting whatever events do constitute a serve's being "in"
to official duties in such a way as to close the space left open by the
structure of claims of duty.
Someone who defends the first version of the no-right-answer
thesis will, of course, challenge my description of the function of dis-
positive concepts. He will say that the function of these concepts is to
enforce, rather than to suppress, the structure of claims of rights and
duties. But he cannot win that dispute with me in advance; if he
believes that the way lawyers use the concept justifies his description
of its function rather than mine, he must provide affirmative evidence
drawn from their practice. I am able to point to the fact that lawsyers
treat the claim that a contract is not valid as the negation of the claim
that it is valid, the claim that someone is not liable as the negation of
the claim that he is, and so forth; and I am also able to show that
lawyers do not use words of the sort his description suggests they
would, like "inchoate" contracts or "vulnerability to liability" or
"criminous" acts. These are powerful arguments in my favor against
his account, and though they are not conclusive, I do not see any
arguments that he might make on his own side
One argument (which I have heard in various forms) at best begs
the question. The argument is this: "An ordinary legal statement, like
'Tom's contract is valid,' is simply a shorthand form of a longer and
more accurate structured statement, namely, 'The law provides that
Tom's contract is valid.' Similarly the statement, 'Tom's contract is
not valid,' is simply a shorthand form of the statement 'The law pro-
vides that Tom's contract is not valid.' But the two longer statements
may plainly both be false. The lav may simply stand silent, that is,
provide nothing either way. But in that case, since the two shorter
statements have the same meaning as the longer statements, the
shorter statements are both false also, which is exactly what the first
version of the no-right-answer thesis provides."
But we must ask what is meant by proposing that "Tom's con-
tract is valid" has the same meaning as "The law provides that Tom's
contract is valid." It might be meant that the latter is simply a re-
dundant way of saying the former, just as "Legally, Tom's contract is
valid" might be regarded simply as a redundant way of saying "Tom's

NEW YORK UNIVERSITY LAW REVIEW (Vol. 53:1
contract is valid." But in that case no reason has been given to sup-
pose that "The law provides that Tom's contract is valid" and "The
law provides that Tom's contract is not valid" may both be false. It is
not evident that "Legally, Tom's contract is valid" and "Legally,
Tom's contract is not valid" may both be false. That is what the first
version must prove, not presuppose. If it strikes someone as evident
that "The law provides that the contract is valid" and "The law pro-
vides that the contract is not valid" may both be false, this is because
he personifies "the law"; that is, he takes it to be like a person who
may provide (p) or (-p) or neither. But the law is not a person.
Perhaps, however, the proposal is based, not on that redun-
dancy, but on a more ambitious semantics, which holds that ordinary
propositions of law have the same meaning as propositions about what
some person or institution has said. "The law provides that Tom's
contract is valid" may be read, on this understanding, as "Appropriate
authorities have decreed some rule according to which contracts like
Tom's must be enforced" or something of the sort. It may certainly
be false that appropriate authorities have decreed either that rule or a
rule requiring the opposite. But it is hardly evident that "Tom's con-
tract is not valid" means the same thing as "Authorities have enacted
some rule according to which the contract is not valid" (or that "Tom
is not guilty of a crime" means the same thing as "Authorities have
decreed some rule according to which what Tom did is not a crime").
On the contrary, that seems wrong. One strong argument against it is
just the fact that "Tom's contract is not valid" seems to be the nega-
tion of "Tom's contract is valid" (and "Tom is not guilty of a crime"
the negation of "Tom is guilty of a crime"). So the argument under
consideration (on this second interpretation as well as on the first) is
not an argument for the first version of the no-right-answer thesis; it
rather presupposes that thesis.
I shall mention one more apparent argument that the defender of
the first version might urge, which we might call the argument from
realism. He might say that my description of the function of disposi-
tive concepts must be wrong, because if it were right legal practice
would be grossly unrealistic in the following way: If we look to the
actual tests the law provides for claims about the validity of contracts,
we see that in fact there is sometimes no right answer to the question
of whether these tests are met in a particular case. Since there may
be no right answer to the question whether an agreement is sacrile-
gious or not, for example, there can be no right answer to the ques-
tion whether Tom's contract is valid or invalid, whether lawyers think
there is a right answer or not. This kind of indeterminacy occurs with
such frequency that it would be unrealistic and indeed perverse for

Aprl 1978] NO RIGHT ANSWER?
lawyers to insist that there is nevertheless no logical space between

the concept of a valid and an invalid contract. The frequency of such
cases, that is, provides a strong motive for adjusting legal semantics
to accommodate the case, and we should therefore expect that
lawyers have already made that adjustment. They may not have actu-
ally developed separate names for each of the third categories they
have been forced to acknowledge -perhaps they' regret such third
categories and wish to keep them secret from the public at large-
but they nevertheless must recognize such cases as distinct. If we
attend very carefully to the nuances of their arguments, therefore, we
may expect to see traces of an unnamned concept actually in use.
I set out this argument from realism because I think it has been
influential. We must now notice, however, that it is not an indepen-
dent argument for the first version of the no-right-answer thesis; on
the contrary, it assumes that the second version has already been
made out. The common sense lawyers are supposed to have is the
common sense necessary to accept the second version of the thesis,
and therefore to adapt their semantics to its truth. We may therefore
safely ignore the argument from realism, and turn instead to the sec-
ond version of the no-right-answer thesis itself. If the second version
fails, the argument from realism collapses; if the second version
holds, the argument from realism is of no independent philosophical
interest.
III
THE SECOND VERSION
I shall consider three arguments that might be thought to sup-

port the second version of the no-right-answer thesis. The first sup-
poses that the inevitable vagueness or open texture of legal language
sometimes makes it impossible to say that a particular proposition of
lav is either true or false. The second supposes that propositions of
law, like the proposition that Tom's contract is valid, have a hidden
structure, explicated by legal positivism, that explains how it may be
true neither that Tom's contract is valid nor that his contract is not
valid. The third fixes on the fact that sometimes, as in our example, a
proposition of law is contested in such a way that neither side has any
hope of proving that the other is wrong; this argument supposes that
propositions of law that are inherently controversial cannot be either
true or false.

NEW YORK UNIVERSITY LAW REVIEW (Vol. 53il1
A. The Argument from Vagueness

It is a very popular idea among lawyers that the vagueness of the
language they use guarantees that inevitably there will be no right
answer to certain legal questions. But the popularity of this idea is
based on a failure to discriminate between the fact and the conse-
quences of vagueness in canonical legal language.
Consider the argument that since the word "sacrilegious" is
vague there can be no right answer to the question whether Tom's
contract is valid. I should want to insist that the argument makes one
mistake not presently important. It confuses the case in which a
legislature uses a vague term, like "middle-aged" or "red," with the
different case in which it lays down a concept that admits of different
conceptions. I shall not press that distinction here, however, because
someone who accepts the distinction might simply add that in either
case what the legislature has said does not dictate a particular answer
to the question of Tom's contract, either because it used a vague term
or, if I am right, for the different reason that it used a concept that
admits of different conceptions. I shall therefore assume, in this
essay, that "sacrilegious" is vague, and that the statute in question is
therefore vague in the way that a statute providing that contracts
signed by people of middle age are invalid would be vague.
In any case the argument from vagueness makes a further mis-
take. It assumes that if a legislature enacts a statute, the effect of that
statute on the law is fixed by nothing but the abstract meaning of
words it has used, so that if these words are vague, it must follow
that the impact of the statute on the law must be in some way inde-
terminate. But that assumption is plainly wrong, because a lawyer's
tests for fixing the impact of a statute on the law may include canons
of statutory interpretation or construction which determine what force
a vague word must be taken to have on a particular occasion, or at
least make its force depend upon further questions that in principle
have a right answer. These tests may refer to matters of intention or
other psychological facts. It is open for a lawyer to argue, for exam-
ple, that the extension of "sacrilegious," on this occasion of its use,
must be confined to cases which at least a majority of those who
voted for the statute had in mind, or would have wished to embrace
if the case had been put to them. But the tests may not rely on
2
psychological facts. It is open for a lawyer to argue, as I have myself,
2 See Dworkin, Hard Cases, 88 HARV. L. REv. 1057 , 1085-87 (1975) [hereinafter Dwor.
kin, Hard Cases], reprinted in R. DWORKIN, TAKING RIGHTS SERIOUSLY 81, 107-10 (1977).

that the impact of the statute on the law is determined by asking

which interpretation, of the different interpretations admitted by the
abstract meaning of the term, best advances the set of principles and
policies that provides the best political justification for the statute at
the time it was passed. Or it is open for him to argue the much more
conservative position that if a statute uses vague language it must be
taken to have changed the legal status quo ante only to the extent
justified by the indisputable core of the language employed.
This last suggestion is interesting, not because the recommenda-
tion to protect the status quo is either popular or attractive, but be-
cause it shows dramatically that vagueness in canonical legal language
does not guarantee indeterminacy in propositions of law. But the
suggestion is open to an apparent objection. Suppose I put the
suggestion this way: (A) If the proposition that a particular contract is
sacrilegious is not true, then the law must treat it as false, so that all
propositions of law are true that would be true if it were false. It may
be objected that, just as it may be indeterminate whether a contract
is sacrilegious, it may also be indeterminate whether the proposition
that it is sacrilegious is true. After all, someone seeking to apply (A)
in practice may find that he is genuinely puzzled whether (A) re-
quires him to treat a particular contract as sacrilegious or as not sac-
rilegious. Suppose all contracts are arranged on a spectrum from
those clearly sacrilegious to those clearly not so. There will be a
group at one end as to which the proposition, "This contract is sac-
rilegious," will be true and another group, around the middle, as to
which that proposition will be neither true nor false. But there are
still others (roughly one third the way along) as to which it is unclear
whether that proposition is true or neither-true-nor-false. So instruc-
tions like (A) cannot eliminate indeterminacy, though they may re-
duce it.
This objection raises interesting issues, but it does not succeed as
a refutation of my present point. Let me recapitulate my argument
with the Person (V) who urges that vagueness in legal language
necessarily produces indeterminacy in propositions of law. V, who is
pursuing the second version of the no-right-answer thesis, argues that
if "40" is a vague term, then there will be sentences of the form "x is
(h" that are true, others that are false, and still others that are neither
true nor false. (This is different from the claim, which would be made
by someone supporting the first version of the thesis, that in some
cases "x is 40" and "x is not (h" are both false.) I reply (in this part of
the argument) that if that is so, then indeterminacy will not result if a
principle of legislation is adopted which requires that if "xis. 0" is not
true, it be treated as false. Now the present objector (R) replies that

though this may reduce the indeterminacy, it cannot eliminate it; R

moves up one level of language to assert that, if "4" is vague, then
there will be cases in which "'x is (A'is true" will itself be neither
true nor false. If I try to meet R by amending my recommended
principle of legislation to provide that if "'x is (A'is true" is not true,
then it must be treated as false, I have achieved nothing. R may then
move to a higher level of language still, and I shall be chasing him
forever.
But is R's initial move sound? Can "'x is 4b' is true" itself be
neither true nor false? Not if we hold to V's original scheme of three
exhaustive truth values-true, false, and neither-true-nor-false. If "x
is 4)" is true, then "'x is (k' is true" is true; but if "x is 4" is false or
neither true nor false, then "'x is 0' is true" is false. In none of the
three possible cases is "'x is 0' is true" itself neither true nor false. So
R seems to be the victim of V's own formulation of his argument. V's
argument assumes that propositions of law are indeterminate only
when some proposition of the form "x is 0" is indeterminate in con-
sequence of the vagueness of "0," but it also assumes that whenever
it is indeterminate whether "4)" holds, then the proposition that ".x is
3
(A"is not true.
' V's argument assumed bivalence between "is true" and "is not true." Can R deny this,
and claim that "is true" is itself vague? V's argument that vagueness produces indeterminacy
relied on a distinction between "x is not '"and "it is not true that x is 4." That distinction is
necessary to his claim that "x is (b," and "x is not 4," might neither be true without either being
false. We can grasp the distinction only if we have independent criteria for asserting that some-
thing is "0k" and asserting that it is not. (I mean, by "independent," that the criteria for assert-
ing the one is not just the absence of the criteria for asserting the other.) Otherwise we could
make no sense of the idea that our criteria may not be satisfied for asserting either. The alleged
vagueness of "0k" consists in this independence of criteria. But can we distinguish in this way
between (1) "p is not true" and (2) "it is not true that p is true"? (1) says (on the analysis just
described) that the criteria for asserting (p) are not met. ftdoes not say that the criteria for
asserting (-p) are met. But (2) seems to say nothing more than the same thing, that Is, that tie
criteria for asserting (p) are not met. What- more or less might it be taken to claim? But if(1)
and (2) do not make different claims, then "is true" cannot be shown to be vague, at least on V's
theory of vagueness. The reader may feel that R has been cheated by this argument, After all,
the circumstance that R called attention to might well arise, for all this complex argument,
Someone told that if it is not true that a contract is sacrilegious he is to treat the contract as not
sacrilegious may still find himself in the difficulty of being uncertain whether it is not true that
the contract before him is sacrilegious. I agree. But that is a problem for V, not for my answer
to R. Someone defending the bivalence thesis I described earlier may say that every contract is
either sacrilegious or not, though it may be unclear which, and reasonable men may differ. V
must show that this claim is wrong, because the proposition that a contract is sacrilegious may
be neither true nor false. R's practical problem provides (I think) an embarrassment for V's
whole approach, at least if it is taken to be an argument for the second version of the no-right-
answer thesis.

April 1978] NO RICHT ANSWER?
So the objection we have been discussing may be set aside.

There is no reason to assume that no general theory of legislation
can be found that will provide an answer to the question of what hap-
pens to the law when some institution has used vague language. It
might now be said, however, that there is no such theory of legisla-
tion in general use. If we look at the decisions of courts called upon
to interpret statutes containing vague terms, we find that the courts
either disagree about techniques of statutory construction or agree
only on canons that critically use terms like "intention" and "purpose"
that are in their own way as vague as "sacrilegious." But what of that?
Even if we treat these pronouncements by courts as canonical state-
ments of law, like statutes, we still leave open the question of how
the law is affected by the fact that courts, in these canonical state-
ments, have used vague terms.
Suppose we put our question about Tom's contract, to which
there is supposed to be no right answer, this way. Given that the
legislature has enacted a statute which provides that "sacrilegious"
contracts are void, given whatever we may suppose about the state of
mind of the legislators who did this, given whatever we might sup-
pose about the attitudes of the general public towards the Sabbath,
and given whatever else may be relevant, is Tom's contract valid in
law, so that he is entitled to have the exchange of promises enforced,
or is the contract invalid, so that Tim is entitled not to have the
exchange enforced? The vagueness of the term "sacrilegious" and the
vagueness inherent in any description the legislators might have
given of their own state of mind, or members of the public of their
own attitudes, are simply facts which our expanded question invites
us to take into account. They do not mean that our question has no
right answer. If someone now points out that the statements judges
make about the construction of statutes themselves contain vague
terms, he simply supplies a further fact. If we agree that that further
fact is relevant to our question, as it plainly is, then we might add, to
our list of considerations, that judges have made such statements.
Nothing has yet been said, relying on the vagueness of the term "sac-
rilegious," to make us doubt that our question has an answer.
I emphasize that qualification because I think that the popular
idea, that some legal questions have no right answer because legal
language is sometimes vague, does not depend on an), argument from
vagueness after all, but rather on the different argument, which I
describe later, that there can be no right answer to a legal question
when reasonable lawyers disagree about what the right answer is. The
concept of a valid contract is not itself vague like the concept of mid-
dle age, and it does not follow from the fact that some statutory Ian-

guage pertinent to the validity of a contract is vague that the question

is also vague whether, given that language, the contract is valid. That
fact does make it more likely, however, that lawyers will disagree
about whether the contract is valid than if the statute contained no
vague terms-not because the meaning of terms is decisive of ques-
tions of validity, but because lawyers do disagree about the
techniques of interpretation and construction properly used to answer
such questions.
B. The Argument from Positivism
Legal positivism has many different forms, but they all have in
common the idea that law exists only in virtue' of some human act or
decision. In some forms of positivism, this act is the command of a
person or group with actual political power; in other forms, it may be
an act as passive as the general and casual acceptance of a customary
rule; but in every form some set of acts is defined as necessary and
sufficient. We may therefore state the structure of positivism, as a
type of legal theory, this way. If "p" represents a proposition of law,
and "L(p)" expresses the fact that someone or some group has acted
in a way that makes (p) true, then positivism holds that (p) cannot be
true unless L(p) is true.
It might therefore seem that positivism, in any of its different
forms, provides an argument for the second version of the no-right-
answer thesis. Suppose (p) cannot be true unless L(p) is true, and
that (-p) cannot be true unless L(-p) is true. For any plausible value
of "L," in some cases both L(p) and L(-p) are false. If "L" expresses
the fact that a sovereign has issued a particular command, for exam-
ple, it might be false that he has commanded that act, and also false
that he has commanded that the act not be done, that is, false that he
has prohibited that act. But if L(p) and L(-p) are both false, then
neither (p) nor (-p) can be true, which is what the second version of
the no-right-answer thesis holds.
Of course, the fact that legal positivism supports the second ver-
sion of the no-right-answer thesis would not count as a complete
proof of the second version without an independent proof that
positivism is right. Nevertheless, since positivism in one form or
another is a very popular legal theory, the apparent connection be-
tween that theory and the second version, if it can be sustained,
would provide important support for the second version and also
explain the great popularity of the no-right-answer thesis. It can
quickly be shown, however, that none of the familiar forms of
positivism does support the second version, and that the only form
that might do so would support it only to a very limited degree.

We can distinguish types of positivism not only by distinguishing

the different values given to "L" in the general structure I described,
but also by distinguishing different relations supposed to hold be-
tween (p) and L(p). Semantic positivism holds that (p) is identical in
meaning to L(p) so that, for example, 'Tom's contract is valid" means
the same thing as "A sovereign has commanded that contracts like
Tom's be enforced" or something of the sort. Plainly, semantic
positivism cannot offer an argument for the second version of the no-
right-answer thesis. The second version concedes that "Tom's contract
is not valid" is the logical negation of "Tom's contract is valid"; it
concedes that if the latter proposition is represented as "p" the
former must be represented as "-p." If a particular form of semantic
positivism supplies a value of "L" such that L(p) and L(-p) cannot
both be false, then the argument for the second version of the thesis
just described does not, for this form of positivism, go through. But if
it supplies some value for "L" such that L(p) and L(-p) may both be
false (as the command form of semantic positivism does) then it con-
tradicts itself, because, since (p) and (-p) cannot both be false, it
cannot be that (p) means the same as L(p) and (-p) means the same
as L(-p). Semantic positivism must therefore deny that "Tom's con-
tract is not valid" is the negation of "Tom's contract is valid"; it is
entitled to deny that, of course, only if it has already been shown that
the surface linguistic behavior of lawyers is misleading in the way that
the first version of the thesis claims.
There are, however, forms of positivism that do not claim that
the relation between (p) and L(p) is identity of meaning. Some forms
of positivism claim only the relation of mutual logical entailment, so
that it is logically necessary, for example, that Tom's contract is valid
if a sovereign has commanded that contracts like his be enforced, and
vice versa. Others claim only the still weaker relation of truth-func-
tional equivalence, so that whenever Tom's contract is valid it will
always also be true that some sovereign has commanded judges to
enforce contracts like his, and vice versa.
It is easy to show, however, that neither mutual-entailment
positivism nor truth-functional-equivalence positivism can support the
second version of the no-right-answer thesis. I will make the argu-
ment for the latter, weaker form of positivism; the same argument
obviously holds for the stronger form. If (p) is truth-functionally equi-
valent to L(p), then (p) is false, and not simply not true, when L(p) is
false. Therefore when L(p) is false, (-p), which is the logical negation
of (p), must be true. Since L(p) must be either true or false, then
either (p) or (-p) must be true, which is what the second version
denies.

The argument from positivism I described earlier in this section

is misleading, because it capitalizes on the supposed distinction be-
tween the internal negation of L(p), which is L(-p), and the external
negation of L(p), which is -L(p). If (p) is truth-functionally equiva-
lent to L(p), then it seems naturally to follow that (-p) is truth-func-
tionally equivalent to L(-p). That seems to leave -L(p) equivalent to
nothing, so that it seems plausible that neither (p) nor (-p) is true
when -L(p) is true. But all that overlooks the fact that if L(p) is
indeed equivalent to (p) and L(-p) is equivalent to (-p), then it fol-
lows from the former equivalence that -L(p) is equivalent to (-p)
and therefore that L(-p) and -L(p), being equivalent to the same
thing, are equivalent to each other. Truth-functional positivism, if it
concedes that the first version of the no-right-answer thesis is false,
provides an argument against, not for, the second version.
That has the following interesting consequence. It has always
been assumed that the values traditional forms of positivism assign to
"'L" use the ordinary meanings of the terms they employ; that the
command theory uses, for example, the ordinary meaning of "com-
mand." But unless positivism maintains the first version of the no-
right-answer thesis, that cannot be so. In the ordinary meaning of
"command," the proposition that someone has commanded
that a
contract not be enforced is not equivalent to the proposition that he
has not commanded that the contract be enforced. But if it is main-
tained that "Tom's contract is valid" is truth-functionally equivalent to
"Lawmakers have commanded that such contracts be enforced" and
that "Tom's contract is not valid" is the logical negation of "Tom's
contract is valid," then it follows that "Lawmakers have commanded
that the contract not be enforced" is equivalent to "Lawmakers have
not commanded that the contract be enforced." 4
In any case, no form of positivism that stipulates truth-functional
equivalence or mutual entailment between every proposition of law
and some proposition about lawmaking acts can support the second
4 In this essay I am concerned only with showing that legal positivism, even if it is true,
does not provide a good argument for the second version of the no-right-answer thesis. This
paragraph suggests an argument against positivism itself (it is, in fact, one way of stating what I
have in various lectures called the "simple-minded argument" against positivism). I do not pro-
pose to pursue that argument in this essay, but it might be useful to notice these points: (1) The
argument, as presented here, fails against what I called in the text semantic positivism. It fails
against, for example, a form of positivism that claims that "Tom's contract is valid" sicans that
judges have a duty to enforce the contract, and the proposition that "Tom's contract Is not
valid" means that judges have a duty not to enforce it. (But semantic positivism is indefensible.)
(2) The argument also fails against a form of positivism that sustains the following claims. Prop-

version of the no-right-answer thesis. If the argument from positivism

is to be effective, some form of positivism must be found that makes
the connection between these propositions a special one such that a
proposition of law is true if and only if a proposition about lawmading
acts is true, but is not false when that proposition about lawmaking
acts is false. None of the orthodox forms of positivism seems to make
that special and limited connection plausible. If a proposition of law is
true when and only when a sovereign has issued a particular sort of
command, then why should it not be false when he has not issued
that command? If a proposition of law is true only when some rule
from which the proposition follows has been enacted or adopted or
accepted pursuant to some rule of recognition, why should it not be
false when no such rule has been enacted or adopted or accepted?
I shall try to suggest, through an analogy, how a positivist might
succeed in answering these difficult questions and thereby in making
that special one-way connection more plausible than it might seem.
Suppose a group of Dickens scholars proposes to discuss David Cop-
perfield as if David were a real person. They propose to say, for
example, that David attended Salem House, that he was industrious,
and so forth. They might well develop the following ground rules
governing these various assertions:
ositions of law can be divided into two classes, which may be called inherently positive (or
inherently mandatory or something of the kind) and inherently negative (or inherently pennis-
sive, etc.), such that, for every proposition of law and its negation, one is inherently positive
and the other inherently negative. If that is so. then a form of positivism can be defended -hich
argues that a positive proposition of lawv is truth-functionally equivalent to some statement about
lawmaking acts, so that, for example, it is true if and only if the sovereign has so commanded.
but that this is not so for negative propositions of law, which may be true just in virtue of the
failure of the sovereign to command the related positive proposition. But notice that this form of
positivism presupposes a kind of reductionism. It supposes. that is. that all propositions of law
that do not on the surface assert or deny duties or permissions can be translated, %ith no
change or loss in meaning, into propositions that do. It also supposes that when this reduction is
carried through, each proposition so reduced wvill belong to an opposite class from that to vhich
its negation is reduced, rather than, for example, each being seen to be (at bottom) claims of
permission that cannot, as a matter of law, both be true. It supposes. further. that the norma-
tive proposition it expresses, which is that whatever is not prohibited is permitted, is a fair
description of legal practice. This assumption may be reasonable in cases in %hich the law
intervenes on a clean slate, as when legal rules for property are provided for a community
which has no (pre-legal) scheme of ownership. It is unreasonable when same area of law de-
velops step-by-step rather than by deploying and then refining some all-eimbracing principle. as
in the case, for example, of the development of large parts of the law of negligence. I do not
regard these brief remarks as effective arguments against a canonical positivefnegaItive (or man-
datorylpermissive) distinction, but only as a reminder of the difficulties such a distinction must
surmount.

(1) Any proposition about David may be asserted as "true" if

Dickens said it, or said something else such that it would have
been inconsistent had Dickens denied it
(2) Any proposition may be denied as "false" if Dickens de-
nied it, or said something else such that it would have been incon-
sistent had Dickens said it.
The first version of the no-right-answer thesis would not hold in
this enterprise. Consider any concept we use to describe real people
such that if it is true that a person has the property in question it is
false that be does not, and if it is false that he has the property it is
true that he does not. That concept will have the same logical be-
havior in the literary discussion. If it is true that David attended
Salem House, then it must be false, under the rules, that he did not,
and vice versa. If it is true that David had an affair with Steerforth
there, then it must be false, under the rules, that he did not, and
vice versa. If it is true that David had type-A blood then it is false
that he did not, and vice versa. We can even say, of David as of real
people, that for any property it is true that either David had that
property or not, because the law of the excluded middle is a neces-
sary truth that it would have been inconsistent for Dickens to deny
once he had said anything at all about David.
But the second version of the no-right-answer thesis would hold
in the literary enterprise, for there would be many propositions about
David that the participants would know were neither assertable as
true nor deniable as false. Dickens never said that David had a
homosexual affair with Steerforth, and it would not have been incon-
sistent with anything he did say if he had denied it. But he did not
deny it, and it would not have been inconsistent with anything he
said if he had asserted it. So the participants can neither assert nor
deny the proposition, not because they lack sufficient information,
but because they have sufficient information to be certain that, under
their rules, the proposition is neither true nor false.
This story suggests a form of positivism that provides for the
special connection I described between propositions of law and prop-
ositions about lawmaking acts. Law is an enterprise such that proposi-
tions of law do not describe the real world in the way ordinary prop-
ositions do, but rather are propositions whose assertion is warranted
by ground rules like those in the literary exercise. A proposition of
law will be assertable as true, under these ground rules, if a
sovereign has issued a command of a certain sort, or if officials have
adopted rules of a certain form in a certain way, or something of that
sort. The same proposition will be deniable as false only if a sovereign
has commanded to the contrary, or if officials have adopted a contrary

rule, or something of that sort. This form of positivism does not pre-
suppose the first version of the no-right-answer thesis, because it
does not suggest that there is any conceptual space, within the in-
stitution of law, between any proposition and its apparent negation. It
does not suppose that the proposition that a contract is valid and the
proposition that it is not valid may both be false. But it does support
the second version of the thesis, because it shows how a particular
proposition may be neither true nor false, not because of some
vagueness or open texture in canonical language, but because the
ground rules of the legal enterprise, like the ground rules of the liter-
ary enterprise I described have that consequence.
We must now notice that this form of positivism differs from
more familiar forms in one important respect. Orthodox positivism, in
each of its forms, claims some sort of conceptual connection between
lav and the particular act or acts designated by the theory as the
distinctive law-creating act. For an Austinian positivist, for example,
the fact that law is the command of the sovereign is not simply the
consequence of the particular legal practices in some countries. It is,
on the contrary, constitutive of the very idea of law. But the new
version of positivism I constructed, based on the analogy of the liter-
ary game, does not permit the positivist so global a claim. He must
be content to say that (as it happens) the citizens and officials in a
particular jurisdiction follow ground rules about the assertion and de-
nial of legal propositions such that no such proposition may be as-
serted unless a sovereign has made the appropriate command, or de-
nied unless he has made the contrary command, and that, for that
reason, there are propositions of lav that can neither be asserted nor
denied. But then his claim is not that there must be, in any legal
system, questions of law that have no right answer for that reason;
but only that there are such questions, for that reason, in the legal
system under consideration. He must concede the possibility, at
least, of other legal systems which follow very different ground rules
about the assertion and denial of propositions of law, and he must
also concede that questions of lav that do not have right answers in
the system he describes have right answers in those other systems,
even though no further commands or other lawmaking acts have
taken place there. 5 It is not difficult to imagine such other systems.
5 I hope that the -new" positivist will not make a different sort of claim. He might say that
a legal system exists only if citizens and officials follow the ground rules he has stipulated, and

The participants in the literary game (to return to that analogy)

might easily have chosen less ascetic ground rules for themselves. We
might, in fact, distinguish a great many varieties of the literary exer-
cise by progressively relaxing these ground rules. The second form of
the exercise might provide, for example, that further propositions
about David are assertable as true (or deniable as false) if it would be
very likely indeed (or very unlikely indeed) that a real person having
the properties true of David under the standard game would also
have the properties asserted in the further propositions. The second
version of the no-right-answer thesis would still hold for the second
form of the literary exercise, but there would be many fewer cases of
questions that have no right answer in the second form than in the
first, not because the raw data of what Dickens said has changed, but
because the ground rules now warrant the assertion or denial of much
more. We can imagine a third form of the exercise in which the
number of such questions would be reduced to very boring questions
no one would wish to ask. The rules of this third form provide that a
further proposition about David is assertable as true (or deniable as
false) if that further proposition provides a better (or worse) fit than
its negation with propositions already established, because it explains
in a more satisfactory way why David was what he was, or said what
he said, or did what he did, according to those already established
propositions. In fact, literary criticism often takes the form of an exer-
cise much closer to this third form of the exercise than to either of
the other two.
We can imagine correspondingly different forms of the legal en-
terprise by supposing progressively less strict ground rules of asser-
tion and denial for propositions of law. We can imagine an enterprise
like the first form of the literary exercise, in which participants assert
or deny propositions of law only if some stipulated lawmaker asserted
or denied those very propositions, or propositions that entail these
propositions. But we can also imagine an enterprise much more like
the third form in which participants assert (or deny) propositions that
that if they do not (but rather follow some different ground rules of the sort I describe In
succeeding paragraphs) then the arrangement does not count as a legal system. Ile could not
claim any justification in ordinary language for that piece of linguistic tyranny, so that his theory
would become simply an unprofitable stipulation, as if some student of literature claimed that
the different forms of literary criticism described in the next paragraph of the text were not
forms of literary criticism. He would fall into the same banality if he were to say that, although
a political arrangement might count as a legal system even if different ground rules were fol.
lowed, an answer to a question about what a court should do would count as a legal answer only
if it would be generated by his ground rules, whether or not it is generated by theirs.

provide a better (or worse) fit with the political theory that provides
the best justification for propositions of law ,already established.
The issue of whether there is a right answer to any particular
question of law will crucially depend upon which form of the legal
enterprise is in play. If it is like the first form of the literary exercise,
then the question of whether Tom's contract is valid will not have a
right answer on the simple facts I stipulated at the start of the essay.
But if it is like the third form, on the other hand, that question will
almost certainly have a right answer, because, for reasons I consider
more fully in the next section, it is very unlikelv that one answer will
not provide a better fit in the sense just described. If a positivist
wishes to argue that in cases like Tom's case there is no right answer,
so that judicial discretion must be exercised willy-nilly, then he must
show that our own legal practice is like the first form of the literary
exercise and not like the third. (I leave aside the question of whether
the latter would count as a positivistic account of law at all.) But
whether our system is more like the first than the third form is a
question of fact. So even if we accept the general account of law I
described, which holds that legal propositions are not directly true or
false of some external world, but are rather propositions whose asser-
tion or denial is licensed by ground rules that vary %%ith practice,
nothing follows, from that general theory of law, about the extent, if
any, to which the second version of the no-right-answer thesis is true
of any particular legal jurisdiction.
C. The Argument from Controversy

I shall now consider what I think has been the most influential
argument in favor of the second version of the no-right-answer thesis,
even though this argument has not always been recognized or clearly
set out in the thoughts of those whom it has influenced. The argu-
ment may be put in the form of a doctrine which I shall call the
demonstrability thesis. This thesis states that if a proposition cannot
be demonstrated to be true, after all the hard facts that might be
relevant to its truth are either known or stipulated, then it cannot be
true. By "hard facts" I mean physical facts and facts about behavior
(including the thoughts and attitudes) of people. By "denonstrated" I
mean backed by arguments such that anyone who understood the
language in which the proposition is formed must assent to its truth
or stand convicted of irrationality.
If the demonstrability thesis holds, then there must be legal
questions t6 which no right answer can be given because neither the
proposition that some dispositive concept holds nor the proposition

NEW YORK UNIVERSITY LAW REVIEW [Vol, 53:1
that it does not hold can be true. If reasonable lawyers can disagree
whether Sunday contracts are sacrilegious within the meaning of the
statute, because they hold different views about how statutes con-
taining vague terms should be interpreted or construed, then the
proposition that Tom's contract is valid cannot be demonstrated to be
true, even when all facts about what the legislators had in mind are
known or stipulated. Therefore, on the demonstrability thesis, it can-
not be true. But the same holds for the proposition that Torn's con-
tract is not valid. Since neither of these propositions can be true, and
since they are assumed to exhaust the range of possible answers, then
there is no right answer to the question.
The demonstrability thesis therefore provides a conclusive argu-
ment for the second version of the no-right-answer thtsis. But why
should we accept the demonstrability thesis? Anyone will accept it, of
course, who holds a strict form of empiricism in metaphysics. If we
believe that no proposition can be true except in virtue of some fact
that makes it true, and that there are no facts in the world but hard
facts, then the demonstrability thesis follows from that metaphysics.
The proposition could rationally be believed to be true, even though
its truth is not demonstrated when all the hard facts are known or
stipulated, only if there were something else in the world in virtue of
which it could possibly be true. But if there is nothing else, then the
proposition cannot rationally be believed to be true; the failure of
hard facts to make it true would have exhausted all hope of making it
true.
But if, on the other hand, we suppose that there is something
else in the' world beside hard facts, in virtue of which propositions of
law might be true, then the demonstrability thesis, in the fbrm I set
it out, must be false. Suppose, for example, there are moral facts,
which are not simply physical facts or facts about the thoughts or
attitudes of people. I do not mean that there are what are sometimes
called "transcendent" or "Platonic" moral facts; indeed I do not know
what these would be. I mean only to suppose that a particular social
institution like slavery might be unjust, not because people think it
unjust, or have conventions according to which it is unjust, or any-
thing of the sort, but just because slavery is unjust. If there are such
moral facts, then a proposition of law might rationally be supposed to
be true even if lawyers continue to disagree about the proposition
after all hard facts are known or stipulated. It might be true in virtue
of a moral fact which is not known or stipulated.
The demonstrability thesis, therefore, seems to depend upon ai
answer to the question of what there is. I shall not, in this essay, try
to make plausible the idea that moral facts exist, but I shall try to

support the idea that some facts beside hard facts do. I wish, for this
purpose, to consider again the third form of the literary exercise I
described in the last section. Participants assert a proposition about
David as true (or deny it as false) if that proposition provides a better
(or worse) fit than its negation with propositions already established,
because it explains in a more satisfactory way why David did what he
did, or said what he said, or thought what he thought, according to
the established propositions.
I do not mean to raise the question, through this story, of
whether fictitious persons are in some sense real so that all these
propositions may be said to be true of someone or something. I do
not mean to suggest, that is, that in addition to hard facts there are
facts like the fact that David Copperfield first read Hamnet at Salem
House. The literary exercise I imagine does not require that assump-
tion to make it a sensible exercise. But it does require the assump-
tion, I think, that there are facts of narrative consistency, like the fact
that the hypothesis that David had a sexual relationship with Steer-
forth provides a more satisfactory explanation of what he subsequently
did and thought than the hypothesis that he did not.
That is not, I take it, a hard fact. It is not the sort of fact that is
even in principle demonstrable by ordinary scientific methods. Since
no one ever did have just the history and character Dickens said
David did, we cannot provide ordinary arguments of probability,
even when all the histories of real people are known, that would
necessarily convince any rational man either to accept or reject the
hypothesis. In some cases, the argument will be so strong for a par-
ticular proposition, no doubt, that we should say that any participant
who did not agree with that proposition was simply incompetent at
the exercise. In other cases, we should not say this at all; we should
say that there is so much to be said on both sides that competent
participants might reasonably disagree.
Suppose that the exercise proceeds with fair success. The par-
ticipants often agree, and even when they disagree they understand
the arguments on both sides well enough to rank each set, for exam-
ple, in rough order of plausibility. Suppose now that an empiricist
philosopher visits the proceedings of the group, and tells them that
there are no such things as facts of narrative consistency or that, in
any case, there are no such facts when reasonable men can disagree
about what they are. He adds that therefore no one can have an),
reason to think, in response to the terms of the exercise, that the
argument that David had an affair with Steerforth is stronger than the
argument that he did not. Why should they be persuaded by what he
says? This case is not like Dummett's example of Charles's bravery I

mentioned earlier. The participants do have reasons for preferring

one proposition to another, or at least they think they do, and even
when they disagree each of them thinks he can distinguish cases
when his opponents have genuine reasons on their side from cases
when they do not. If they have all made a mistake, and no reasons
exist, it is difficult to see why they think they do, and how their
exercise can have had the success it has.
The philosopher's argument would be compromised, moreover,
by the following consideration. It is very likely that if he is asked to
take part in the exercise he will find, at least after listening to the
group for a while, that he himself will have beliefs of narrative consis-
tency, and that he will be able to provide arguments that others rec-
ognize as arguments, and so forth. But how can he say that he be-
lieves it is more likely that David had an affair with Steerforth, and
offer reasons for that belief, and nevertheless maintain that no one
can have reasons for such a belief, or that all such beliefs are illu-
sions?
Suppose he says that while it is true that he and the other par-
ticipants have such beliefs, they have these only as participants, so
that it would be quite impossible for an independent observer or cri-
tic to say that one participant's beliefs are superior to another's.
Would the independent observer or critic himself have beliefs, if he
became a participant, even in controversial cases? If not, then the
participants will properly doubt whether he has the capacity to judge
their debates. But if so, then he does think, after reflection, that
some of the participants have the better of the argument, namely
those with whom he would agree. Why should he lose that belief,
and whatever reasons he has to support it, when he steps back from
the debate and reassumes the role of critic? Of course, he cannot
demonstrate his beliefs, either as participant or critic, any more than
the other participants can demonstrate their beliefs. But the fact that
a critic is in that position offers no more argument for the demonstra-
bility thesis than the fact that a participant is in the same position.
We might now assume the offensive against the philosopher and
argue that the fact that the enterprise succeeds in the way it does is a
reason for supposing that there are facts of narrative consistency
about which the participants debate. He might oppose that argument
in this way: He might try to show that the fact that a particular par-
ticipant holds a particular belief of narrative consistency can be satis-
factorily explained by considering only the participant's own person-
ality and tastes and history, so that it is not necessary, to explain his
beliefs, to suppose any objective fact to which he is responding, in
the way in which we ordinarily suppose objective facts in explaining

vhy people hold beliefs about hard facts. It is unclear how he might
conceivably show this. Perhaps he might invent a machine which
would be able to predict, with great accuracy, what a participant's
belief would be with respect to any question about David that might
be asked, once highly specific information about the participant's
blood chemistry was programmed into the machine. It is, of course,
very speculative that if such a machine were built it 'vould yield such
predictions in the case of this literary exercise, but not also in the
case of, for example, astronomers who debate about the number of
Jupiter's moons. If the demonstrability thesis depends on the specula-
tion that the machine would yield positive results in the one case, but
not in the other, then it rests on very, shaky ground.
Let us assume, nevertheless, that such a machine could be built,
and that it would yield that discriminatory information about the
literary exercise. What follows? The philosopher might be justified in
concluding that the literary exercise was special in the following
sense: In many exercises, including the experimental sciences, par-
ticipants are trained to respond to their observations of the external
world in a way which, we suppose, increases our collective knowl-
edge of the world. In the literary exercise, participants are trained to
respond to certain questions of a highly specific form which, as the
machine is supposed to have proved, cannot be said to be questions
about the external world. The), are trained to subject their responses
to the disciplines of reflection and consistency, and then to make cer-
tain assertions that their training authorizes them to make on the au-
thority of these responses so disciplined. The exercise, conducted by
participants so trained, serves some purpose- perhaps recreational or
cultural-other than to increase our collective knowledge of the ex-
ternal world.
Suppose this distinction, or some more sophisticated version, can
in fact be made out between enterprises like astronomy and enter-
prises like literary games. That would be an important discovery, and
we should certainly wish to mark the distinction in some way. Sup-
pose a philosopher argues that, in consequence of the distinction, we
should not say that propositions asserted by participants in the liter-
ary exercise can be either true or false. If he explained that he
wished to mark the important distinction in this way, we might or
might not agree that the constraint he suggests is an appropriate way
to do this. But we should be careful to stipulate what must not follow
from the decision to restrict the use of "true" and "false" in that way.
It must not follow, for example, that the participants have no
reason to think one judgment of narrative consistency superior to
another when they disagree about which is superior. They still have

just the reason the enterprise teaches them to recognize-the fact of

their disciplined and reflective response to the distinct questions the
enterprise requires them to ask. The philosopher might concede this,
but then say that they must recognize that the enterprise that en-
courages them to make judgments of this sort is based on an illusion.
But if the exercise serves its purpose, whatever that might be, what
reform would be justified in consequence of what he says? If no re-
form would be justified, what is the illusion?
Our philosopher might say that the illusion is the supposition
that facts about narrative consistency are part of the external world in
the same sense in which facts about the weight of iron are part of the
world. But the participants certainly do not think that narrative con-
sistency is the same sort of thing as the weight of iron, or that it is
part of the external world in anything like the way that the weight of
iron is. The philosopher may say that they think that their judgments
of narrative consistency are objective, whereas it has now been shown
that they are merely subjective. But his own theory makes us lose
our grip on that ancient distinction. Whatever sense statements about
narrative consistency may have, they are given that sense by the en-
terprise that trains participants to make and respond to such state-
ments. The philosopher's claim that the reasons of one are no bet-
ter-provide no superior warrant for his assertion-than the reasons
of another is a claim that can only be made from within the enter-
prise. From within the enterprise (except in certain circumstances I
shall discuss in a moment) that claim is simply false, or, if we choose
to avoid that word, simply not warranted. Our philosopher may, of
course, say that an institution so constructed is a silly one, and that
may or may not be so. Whether it is so will depend upon whether
the enterprise, taken as a whole, serves some worthwhile purpose,
and serves it better than a revised form of the enterprise would.
The third form of the literary exercise is therefore an enterprise
that makes trouble for the demonstrability thesis. I suggested, in the
last section, that our own legal system might resemble that form of
the literary exercise. In a recent article, 6 in fact, I offered a theory of
adjudication which supports the following description of our legal en-
terprise. A proposition of law, like the proposition that Tom's contract
is valid, is true if the best justification that can be provided for the
body of propositions of law taken to be settled provides a better case
for that proposition than for the contrary proposition that Tom's con-
6 Dworkin, Hard Cases, supra note 3.

Aprfl 1978] NO RIGHT ANSWER?
tract is not valid, but is false if that justification provides a better case
for that contrary proposition. There are important differences be-
tween the idea of consistency used in this account of legal reasoning
and the idea of narrative consistency used in the literary exercise.
Legal reasoning makes use of the idea of normative consistency which
is plainly more complex than, and may be thought to introduce
grounds for claims of subjectivism not present in, narrative consis-
tency. Nevertheless the comparison may help to explain why it is
sensible to suppose that there might be a right answer to the ques-
tion of whether Tom's contract is valid even when that answer cannot
be demonstrated.
The comparison is useful in another way as well. It helps us to
understand why, even though we reject the demonstrability thesis
and therefore reject the idea that there is no right answer whenever
the right answer is not demonstrable, it might nevertheless be sensi-
ble to say that there is no right answer to a question of law in certain
very special cases. In certain circumstances, even in the third form of
the literary exercise, it might be right for the participants to refuse to
assert either that David had some property or that he did not. Sup-
pose the question is raised whether David had type-A blood or not,
and there is no reason to think that a boy with that blood type would
be more likely to have had the history and character Dickens stipu-
lates than a boy with any other blood type. The proposition that
David had type-A blood is not vague; we can say that any historical
boy would either have had type-A blood or not, and that there is a
right answer to the question whether he did, even though we shall
never know. But the assertion conditions of the literary exercise for-
bid saying that of David; it seems more sensible, given these condi-
tions, to say that though the proposition that he had that blood type
is not true, the proposition that he did not is not true either. In such
a case the grounds for saying that there is no right answer to the
question are not based on any external criticism of the enterprise, or
on any external philosophical position like the demonstrability thesis.
The grounds are simply that that is the right response within the
terms of the enterprise itself. We may imagine a genuine controversy
within the enterprise as to whether, in any particular case, that is the
right response. One party may say that there is a reason for thinking
that boys like David would for that reason have been more likely to
have type-A blood and another that there is a reason for thinking that
they would more likely not, and a third thinking either that there
were no reasons either way, or that whatever reasons there were
were so equally balanced that no sensible discrimination could be
made.

The occasions on which the participants would be tempted to say

that there was no right answer to some question about David would
be a function of two considerations. The first is the length of the
novel, or, rather, the density of the information that Dickens does in
fact supply. The second is the character of the question. If it is a
question about a feature that is randomly distributed throughout a
population, so that the fact that a boy had the specific characteristics
Dickens described, no matter how dense the description, can have
little bearing on the question of whether he had the feature in ques-
tion, then it is more likely that the question will have no right an-
swer.
Can we imagine questions that might be raised within a legal
system that would have no right answer for the same sort of reason?
That must depend upon the legal system, of course, but it also de-
pends upon how we understand and expand the claim, just men-
tioned, that a proposition of law is sound if it figures in the best
justification that can be provided for the body of legal propositions
taken to be settled. I argue that there are two dimensions along
which it must be judged whether a theory provides the best justifica-
tion of available legal materials: the dimension of fit and the dimen-
sion of political morality. 7 The dimension of fit supposes that one
political theory is pro tanto a better justification than another if,
roughly speaking, someone who held that theory would, in its ser-
vice, enact more of what is settled than would someone who held the
other. Two different theories may well provide equally good justifica-
tions, along that dimension, in immature legal systems with few set-
tled rules, or in legal systems treating only a limited range of the
conduct of their constituents. But in a modern, developed, and com-
plex system, the antecedent likelihood of that kind of tie is very
small. The tie result is possible in any system, but it will be so rare
as to be exotic in these. I do not mean, of course, that it will be rare
that lawyers disagree about which theory provides, even on that di-
mension, a better justification. It will be rare, I think, that many
lawyers will agree that neither provides a better fit than the other.
The second dimension-the dimension of political morality-
supposes that, if two justifications provide an equally good fit with the
legal materials, one nevertheless provides a better justification than
the other if it is superior as a matter of political or moral theory; if,
that is, it comes closer to capturing the rights that people in fact
7 See R. DwoRKcIN, supra note 3, 81-130 (ch. 4).

Apri 1978] NO RIGHT ANSWER?
have.8 The availability of this second dimension makes it even less

likely that any particular case wvill have no right answer. But the force
of the second dimension-and the character of the indeterminacy it
introduces-will be a matter of dispute, because lawyers who hold
different types of moral theory will assess these differently.
Straightforward moral skeptics will argue that the second dimension
adds nothing, because no theory is superior, as a matter of political
morality, to any other. If some case has no right answer taking into
account the first dimension only, then that case has no right answer
tout court. Someone who holds an old-fashioned pleasure-pain
utilitarian theory of rights, on the other hand, will find it incredible
that two theories distinct enough to require different decisions in any
particular case will score equally on the second dimension. He will
recognize the theoretical possibility that two distinct sets of moral
rules would have exactly the same pleasure-pain consequences over
the long run; but he will think that the possibility is so small that it
may be ignored in practice.
In the case of some theories of rights, it will be problematic
whether there is even the theoretical possibility of no-right-answer.
Suppose a right-based theory of political morality that seeks to derive
particular individual rights from some presumed absolute right to be
treated as an equal, that is, with equal concern and respect. Two
lawyers who accept that general theory may hold different correep-
tions of what counts as equal respect. May a third lawyer plausibly
believe that neither is right, because one conception of respect is
exactly as good as another? Once we grasp the ideas of the old-
fashioned utilitarian, we can see what sense it makes to suppose a tie,
within his system, between two acts or two rules or principles. They
are tied if each would produce exactly the same positive pleasure
balance. But it is not so easy to see how someone could accept the
general idea of the equal respect theory and still maintain, not that
he is uncertain which conception is superior, but that neither is.
There seems to be no room here for the ordinary idea of a tie. If
there is no right answer in a hard case, this must be in virtue of some
more problematic type of indeterminacy or incommensurability in
moral theory.
The question, therefore, of whether there are no-right-answer
cases in a particular jurisdiction-and whether such cases are rare or
8 The relation between these two dimensions of justification is considered in Dworin.
Seven Critics, 11 GA. L. REv. 1201, 1252-53 (1977).

numerous-is not an ordinary empirical question. I believe that such

cases, if they exist at all, must be extremely rare in the United States
and Great Britain. Someone who disputes this cannot, if the argu-
ments of this essay are right, establish his case simply by relying on
the demonstrability thesis or the other a priori arguments considered
earlier. But nor is he likely to succeed by attempting to find actual
examples of no-right-answer cases in a case-by-case search of the law
reports. Each case report carries an opinion arguing that one side
has, on balance, the better of the legal argument. Some cases carry a
dissenting opinion as well, but this is also an argument that one side
has the better case. Perhaps both the majority and minority opinions
are wrong: Perhaps some combination of legal and philosophical
analysis can show that, in this particular case, the arguments for
neither side are on balance stronger than those for the other. But it is
extremely unlikely that an argument that this is so in some particular
case will convince all lawyers. Any case cited as an example by one
scholar will be disputed by others.
The argument that I am wrong must therefore be a philosophical
argument. It must challenge my assumption that in a complex and
comprehensive legal system it is antecedently unlikely that two
theories will differ sufficiently to demand different answers in some
case and yet provide equally good fit with the relevant legal mate-
rials. It must provide and defend some idea of skepticism, or of inde-
terminacy in moral theory, which makes it plausible to suppose that
neither of such theories can be preferred to the other on grounds of
political morality. I do not think that any such argument has been
provided, though I have certainly not shown that none could be.

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WHAT IS THE QUESTION?

When is there no right answer to a question of law? Suppose the

* ©Ronald Dworkin. From LAw, MORALITY, AND SOCIErT: ESSAYS IN iONOUR OF

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If it is true that an exchange of promises either does or does not

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The second version of the no-right-answer thesis, on the other

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gues that (non-p) is not identical to (-p); (non-p) should be rep-

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That space might easily be exploited to introduce a form of con-

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consequence of the proposition that the contract is valid that a judge

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ball landing within or without a physical area. The correct analog), is

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lawyers to insist that there is nevertheless no logical space between

THE SECOND VERSION

I shall consider three arguments that might be thought to sup-

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A. The Argument from Vagueness

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that the impact of the statute on the law is determined by asking

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though this may reduce the indeterminacy, it cannot eliminate it; R

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So the objection we have been discussing may be set aside.

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guage pertinent to the validity of a contract is vague that the question

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We can distinguish types of positivism not only by distinguishing

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The argument from positivism I described earlier in this section

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version of the no-right-answer thesis. If the argument from positivism

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(1) Any proposition about David may be asserted as "true" if

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The participants in the literary game (to return to that analogy)

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C. The Argument from Controversy

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mentioned earlier. The participants do have reasons for preferring

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just the reason the enterprise teaches them to recognize-the fact of

6 Dworkin, Hard Cases, supra note 3.

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